Obama - Maybe a Citizen of the United States but Not a "natural born

Citizen" of the United States

Originally Written & Posted Online @ Puzo1.BlogSpot.com on

Thursday, March 4, 2010 @ 8:54 PM

Obama - Maybe a Citizen of the United States but Not a "natural born
Citizen" of the United States

by: Mario Apuzzo, Esq., Email: Apuzzo@erols.com Tel: 732-521-1900

The question which has gripped our Constitutional Republic is whether putative
President, Barack Obama, is eligible to be President and Commander in Chief of the
Military. Article II, Section 1, Clause 5 of our Constitution provides that: “No Person
except a natural born Citizen, or a Citizen of the United States, at the time of the
Adoption of this Constitution, shall be eligible to the Office of President; neither shall
any person be eligible to that Office who shall not have attained to the Age of thirty five
Years, and been fourteen Years a Resident within the United States.” Despite the fact that
Article II itself, and when read together with Articles I, III, IV and Amendments Eleven,
Fourteen, Fifteen, Nineteen, Twenty-Four, and Twenty-Six, clearly makes a distinction
between a “Citizen of the United States” and a “natural born Citizen,” when it comes to
deciding whether Obama is eligible to be President under Article II, many incorrectly
interpret a “Citizen of the United States ” to be the same thing as a “natural born Citizen.”
With these two clauses not having the same meaning, the proper eligibility question is not
whether Obama is a “Citizen of the United States.” Rather, the correct inquiry is whether
Obama is a “natural born Citizen.”
Most probably recognize that United States citizens are created either at birth or at the
moment of naturalization. The former is a native (using that term in its modern sense and
not in the sense that the Founders used it) and the latter is not. Most probably also
recognize that a naturalized citizen is not eligible to be President. But what many fail to
recognize is that the event of birth has two natural elements which always have and
always will be present in every birth: (1) the place where one was born and (2) the two
parents who procreated the child. Hence, some also fail to understand that there are two
types of born citizens, one being a born "Citizen of the United States" and the other being
a "natural born Citizen." Under current law, a born "Citizen of the United States" is one
granted that status under the 14th Amendment or Congressional Act (e.g. Title 8 Section
1401), both of which consider either (1) being born on United States soil or (2) being
born to at least one United States citizen parent sufficient conditions for being granted the
status of a born "Citizen of the United States." Never in our history has the United States
Supreme Court or the Congress ever required that one needs to satisfy both of these
conditions in order to be a “citizen of the United States.” But as to a “natural born
Citizen,” we have a different story.

To understand what an Article II “natural born Citizen” is, we have to revert to the
Founding era to determine what the Founders and Framers intended that clause to mean.
In analyzing what meaning the Framer’s gave to the “natural born Citizen” clause, we
must remember that they wrote the Constitution in the historical context of having won a
Revolution and in having to constitute a new society. They were inspired by and found
justification in the political philosophy of natural law and the law of nations and not that
of the English common law in going forward with that Revolution and they relied on that
same law when defining national citizenship. Article II, Section 1, Clause 5 of the
Constitution grandfathered all persons to be eligible to be President who were “Citizens
of the United States” at the time the Constitution was adopted. These persons would have
been adults who were born in the colonies, children born in the new states, or adults
inhabiting or naturalized under the naturalization laws in either place, at the time that the
Constitution was adopted, provided they all adhered to the American Revolution. Justice
Gray in United States v. Wong Kim Ark, 169 U.S. 649 (1898) explained that under
English common law that prevailed in the colonies these original citizens included
persons who were born in the colonies or new states to alien parents. These original
citizens, whether born in the country or out of it, were all naturalized to be “citizens of
the United States” by simply adhering to the American Revolution. The Founders in
Article II grandfathered these “citizens of the United States” to be eligible to be
President, provided that they were such at the time of the adoption of the Constitution
which we know occurred on September 17, 1787. The grandfather clause is obsolete
today.
The Founders themselves, being born prior to independence were subjects of the British
Crown and to other foreign sovereigns but adhering to the American Revolution became
part of the first “citizens of the United States.” All being born in the colonies before the
Declaration of Independence was adopted in 1776 to British parents, the first seven
Presidents were born subjects of Great Britain (born subject to a foreign power) and
therefore needed the grandfather clause to make them eligible to be President. William
Harrison, the ninth President, born in 1773 in Virginia, was the last President who could
utilize the grandfather clause to make him eligible to be President. Justice Story observed
in his Commentaries on the Constitution of the United States that for the Framers to
allow naturalized citizens (who like them were born subject to a foreign power and as we
shall see below not “natural born Citizens”) to be eligible to be President was an
exception to “the great fundamental policy of all governments, to exclude foreign
influence from their executive councils and duties.” III J. Story, Commentaries on the
Constitution of the United States Sec. 1473 (1833). Being born on December 5, 1782, on
United States soil (in New York and therefore not born on foreign soil) to parents who
had also become “citizens of the United States” by election to be loyal to the American
Revolution (not born to foreign parents), Martin Van Buren, the eighth President (his
mother was of Dutch ancestry and his great-great-great-great-grandfather Cornelis had
come to the New World in 1631 from the Netherlands) was the first United States
President not born a British or other foreign subject (not subject to a foreign power by
being born either on foreign soil or to a foreign parent) who was born a “natural born
Citizen” and who therefore did not need the grandfather clause to make him eligible to be
President. The New Netherland Institute describes Van Buren’s family history as follows:
“In fact, although they were fifth generation Dutch, all of their forebears were of Dutch
extraction. The original Van Buren had come over in the 1640's during the Van
Rensselaer era when all of Columbia County was part of the Rensselaer Estate. And the
original immigrant forbear probably came over sponsored by Killian Van Rensselaer,
among many other immigrants, to occupy the Rensselaer estate. As a result Martin Van
Buren was pure Dutch, and still spoke Dutch, the language that prevailed for many
generations in that part of New York State along the Hudson River.”
http://www.nnp.org/nni/Publications/Dutch-American/buren.html. It has been said that
Van Buren is the first President born under the American flag.

On the other hand, for children born after the adoption of the Constitution in 1787, the
same Article II, Section 1, Clause 5 provides, among other things, that only a "natural
born Citizen" is eligible to be President. An Article II "natural born Citizen" is one
granted that special status under American common law that has its origins in natural law
and the law of nations. With citizenship being a matter of status having international
implications, the Framers would have expected its definition to be supplied by public law
or the law of nations and not by any municipal or English common law, which the States
continued to use to resolve their local problems concerning contracts, torts, property,
inheritance, criminal procedure, etc. Under the law of nations, to be a "natural born
Citizen," the child needed to be born in the United States (or what may be deemed its
equivalent) to two citizen parents. This definition of a “natural born Citizen” is found in
and has been confirmed by the following United States Supreme Court cases and other
authorities:
1. Samuel von Pufendorf, The Whole Duty of Man According to the Laws of Nature
(William Tooke trans., Ian Hunter & David Saunders, eds., Liberty Fund 2003, Book II,
Chapter 6, xiii (1691): “Citizens are either Originally so; that is, such as are born in the
Place, and upon that Account claim their Privileges; Or else, Adscititious; that is, such as
come from Foreign Parts. Of the first Sort, are either those who at first were present and
concerned in the forming of the said Society, or their Descendants, who we call
Indigenes, or Natives. Of the other Sort are those who come from Foreign Parts in order
to settle themselves there. As for those who come thither only to make a short Stay,
although they are for that Time subject to the Laws of the Place; nevertheless, they are
not looked upon as Citizens, but are called Strangers or Sojourners."

2. Emer de Vattel, The Law of Nations, or Principles of the Laws of Nature, Applied to
the Conduct and Affairs of Nations and Sovereigns, bk. 1, c. 19, sec. 212 (original French
in 1758 and first English in 1759): Vattel clearly distinguished between “citizens”
(“citoyens” in French) and “naturals” (“naturels” in French). His title for Section 212 is
“Des citoyens et naturels” (“Of citizens and naturals” which the English translators called
"Of the citizens and natives"). He therefore saw that there is a difference between the two
types of citizens. He then explained that difference: “The citizens are the members of the
civil society: bound to this society by certain duties, and subject to its authority, they
equally participate in its advantages. The natives, or indigenes, are those born in the
country of parents who are citizens”. In the 1797 English edition, the translator replaced
the word “indigenes” with “natural-born citizens.” Hence, it read: “The citizens are the
members of the civil society: bound to this society by certain duties, and subject to its
authority, they equally participate in its advantages. The natives, or natural-born citizens,
are those born in the country, of parents who are citizens.” Hence, while the definition of
a natural born citizen never changed in Vattel’s texts, the term to express it was changed
from “indigenes” to “natural-born citizens.”

With many of the Founders being proficient in Latin, Greek, and French, they probably
obtained the clause “natural born citizen” and its synonym, “native,” from ancient Latin
text which was also translated into English rather than from simply copying the clause
“natural born subject” from the English common law and substituting the word “citizen”
for “subject.” That ancient text was found in Institutio Oratoria, by Marcus Fabius
Quintilianus (or Quintilian), published in Latin in the first century A.D. The Framers
were well read in the Roman and Greek classics as is expounded upon in their writings in
the Federalist Papers. Jefferson and other Founders had a love for Roman history and
education. From the excellent research conducted by John Greschak, we learn the
following: “In 1774, the phrase natural born citizen was used in an English translation
(from the Latin) of the book Institutio Oratoria, by Marcus Fabius Quintilianus
(published in the first century A.D.); this was done in Chapter I of Book VIII. The phrase
is found in the Latin text: Quare, si fieri, potest et verba omnia et vox huius alumnum
urbis oleant, ut oratio Romana plane videatur, non civitate donata. Quintilianus, Institutio
Oratoria, Book 1, Chapter VIII. There have been at least five different English
translations of this work and this sentence. The first was by Guthrie in 1756. Since then,
there have been translations by Patsall (1774), Watson (1856), Butler (1920-2) and
Russell (2001).” http://www.greschak.com/essays/natborn/index.htm. Greschak found
that Guthrie in 1756 used the word “native” when translating Quintilianus’ reference to
that Roman citizen who because of birth and family upbringing was expected to be most
able to speak the pure Roman language. In referring to the same type of citizen, Patsall in
1774 translated the same sentence as: “Therefore, if possible, every word and the very
tone of voice, should bespeak the natural born citizen of Rome, that the language may be
purely Roman, and not so by a right different from birth and education” (emphasis
supplied). Greschak states: “I do not claim that this is the first use of the phrase natural
born citizen, but it is the earliest use of which I am aware.” Id. “Alumnum” means
"nourished, brought up; reared/fostered by; native, brought up locally." (Latin-English
Dictionary 1.97FC). “Urbis” means city. Parentage, education, and upbringing made an
“alumnum urbis oleant.” Just being born in the city was not sufficient to meet the
definition of the phrase. It was both birth in the locality and parental and institutional
rearing and education from birth that produced the “natural born citizen.”

Hence, Quintilianus’ work which was translated from the Latin to the English provided
the clause “natural born citizen” and the word “native” and the translators used the words
interchangeably to mean the same thing. This fluctuation in translation explains why the
Founders, too, used the words “native” and “natural born Citizen” synonymously.

Quintilianus also provides an explanation of how the Framers translated Vattel by taking
his French words of “Les naturels, ou indigenes” or the same words translated into
English as “natives or indigenes” and translated or converted them into “natural born
Citizen” which is what they wrote into Article II. Being able to read and understand the
definitions that Vattel gave to the clause “Les naturels, ou indigenes” (in French) and
“The natives or indigenes” (in English), they realized that Vattel’s clauses as written in
either French or English were the equivalent to “native” or “natural born citizen” with
which they were familiar from having found the clauses in ancient Latin text or its
English translations that we saw above. The Founders would have been familiar with
both “natural born citizen” and “native” from having seen the two expressions in these
various English translations of the ancient Latin text. These English translations took the
Latin clause “alumnum urbis oleant” and translated it into either “native” or “natural born
citizen.” Hence, it appears that the English translators believed that either “native” or
“natural born citizen” captured the meaning of “alumnum urbis oleant.” The Framers,
applying their study and knowledge of natural law, would have equated Vattel’s
description of “Les naturals, ou indigenes” or “the natives or indigenes” found in Section
212, which was a citizen of true origin and therefore of the highest order with what
Quintilanus called “alumnum orbis oleant,” also considered by him to be a citizen of true
Roman origin and of the highest order. In fact, during the constitutional debates the
Framers also used both “natural born citizen” and “native” interchangeably, just as the
English translators of the Latin term “alumnum orbis oleant” did. It would be highly
coincidental that both the English translators of Quintilianus’ Latin text and the Founders
would have been using those two clauses interchangeably unless they were referring to
the same concept, “alumnum orbis oleant.” We know that the Framers chose “natural
born Citizen” rather than “native.” They then applied Vattel’s definitions to the “natural
born citizen” clause that they selected. It is also significant that the English translator of
the 1797 English edition used “the natives, or natural-born citizens” in the place of “the
natives, or indigenes.” In making this change, this translator probably knew that the
Founders used “natives” or “natural born Citizens” to represent the citizens of the highest
order and whom Vattel called “Les naturels, ou indigenes,” or what had been to date
translated as “the natives, or indigenes.”

3. Rutgers v. Waddington (1784): In 1784, Alexander Hamilton, as the lawyer for the
defense, arguing in the case of Rutgers v. Waddington, quoted prolifically from Vattel’s,
The Law of Nations. The Waddington case shows how Vattel shaped Hamilton’s
thinking. Hamilton argued that the law of nations was part of the common law and that
the decisions of the New York Legislature must be consistent with the law of nations.
Hamilton used Vattel as the standard for defining the law of nations. Hamilton argued
that state law was superseded by national law and the law of nations. He also argued that
the intent of the state legislature had to be that their laws be applied in a fashion that was
consistent with national law and the law of nations. Judge James Duane in his ruling
described the importance of the new republic abiding by the law of nations, and
explained that the standard for the court would be Vattel. He ruled that the New York
statue passed under the color of English common law must be consistent with the law of
nations. Hamilton espoused a concept of constitutional law which he obtained from the
teachings of Vattel. It was Vattel that gave him the idea of the judicial branch of
government making sure that both the legislative and executive branches follow the
Constitution. It was Hamilton’s views on Vattel that lead to the creation of judicial
review which was included into the Constitution and which was later given prominence
by Chief Justice John Marshall. It was Vattel’s idea of what the purpose of government
should be (promote commerce, revenue, agriculture, tranquility, happiness, stability, and
strength) that Hamilton advocated to the convention delegates in 1787. Hence, there is no
doubt that Vattel shaped the founding of the United States.

4. The Venus, 12 U.S. (8 Cranch) 253, 289 (1814): Chief Justice John Marshall,
concurring and dissenting for other reasons, said: “Vattel, who, though not very full to
this point, is more explicit and more satisfactory on it than any other whose work has
fallen into my hands, says ‘The citizens are the members of the civil society; bound to
this society by certain duties, and subject to its authority, they equally participate in its
advantages. The natives or indigenes are those born in the country of parents who are
citizens. Society not being able to subsist and to perpetuate itself but by the children of
the citizens, those children naturally follow the condition of their fathers, and succeed to
all their rights.’”
5. Shanks v. Dupont, 28 U.S. 242, 245 (1830): “If she was not of age, then she might well
be deemed under the circumstances of this case to hold the citizenship of her father, for
children born in a country, continuing while under age in the family of the father, partake
of his national character as a citizen of that country.”

6. Dred Scott v. Sandford, 60 U.S. 393 (1857): Justice Daniel concurring, cited and
quoted from Vattel and The Law of Nations thus: "'The citizens are the members of the
civil society; bound to this society by certain duties, and subject to its authority, they
equally participate in its advantages. The natives, or natural-born citizens, are those born
in the country, of parents who are citizens. As society cannot perpetuate itself otherwise
than by the children of the citizens, those children naturally follow the condition of their
parents, and succeed to all their rights.' Again: 'I say, to be of the country, it is necessary
to be born of a person who is a citizen; for if he be born there of a foreigner, it will be
only the place of his birth, and not his country. . . .'" It should be noted that Justice Daniel
took out of Vattel’s definition the reference to “fathers” and “father” and replaced it with
“parents” and “person,” respectively. I have maintained that the Founders and Framers
relied upon natural law and the law of nations rather than the English common law to
define a "natural born Citizen." On the question of whether blacks were citizens, Justice
Curtis in dissent looked to the law of nations to determine their status given that there
was no other municipal law that had abrogated that law. He did not look to the English
common law.

7. Rep. John Bingham, in the House on March 9, 1866, in commenting on the Civil
Rights Act of 1866 which was the precursor to the Fourteenth Amendment: "[I] find no
fault with the introductory clause [S 61 Bill], which is simply declaratory of what is
written in the Constitution, that every human being born within the jurisdiction of the
United States of parents not owing allegiance to any foreign sovereignty is, in the
language of your Constitution itself, a natural born citizen. . . . ” Cong. Globe, 39th, 1st
Session, 1291 (1866).

8. Slaughter-House Cases, 83 U.S. 36, 21 L.Ed. 394, 16 Wall. 36 (1872): In explaining

the meaning of the Fourteenth Amendment clause, “subject to the jurisdiction thereof,”
said in dicta that the clause “was intended to exclude from its operation children of
ministers, consuls, and citizens or subjects of foreign States born within the United
States.”

9. Minor v. Happersett, 88 U.S. 162, 167-68 (1875): “The Constitution does not in words
say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At
common law, with the nomenclature of which the framers of the Constitution were
familiar, it was never doubted that all children born in a country of parents who were its
citizens became themselves, upon their birth, citizens also. These were natives or natural-
born citizens, as distinguished from aliens or foreigners. Some authorities go further and
include as citizens children born within the jurisdiction without reference to the
citizenship of their parents. As to this class there have been doubts, but never as to the
first. For the purposes of this case, it is not necessary to solve these doubts. It is
sufficient, for everything we have now to consider, that all children, born of citizen
parents within the jurisdiction, are themselves citizens.” Id., 169 U.S. at 679-80. Minor
did not cite Vattel but as can be seen the Court’s definition of a “citizen” and a “natural
born Citizen” are taken directly out of Vattel’s Section 212.

10. Ex parte Reynolds, 20 F.Cas. 582, 5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879):
“[T]he offspring of free persons…follows the condition of the father, and the rule partus
sequitur patrem prevails in determining their status. 1 Bouv. Inst., 198, § 502; 31 Barb.
486; 2 Bouv. Law Dict. 147; Shanks v. Dupont, 3 Pet. [28 U.S.] 242. This is the universal
maxim of the common law with regard to freemen -- as old as the common law, or even
as the Roman civil law… No other rules than the ones above enumerated ever did prevail
in this or any other civilized country. In the case of Ludlam v. Ludlam, 31 Barb. 486, the
court says: ‘The universal maxim of [**17] the common law being partus sequitur
patrem, it is sufficient for the application of this doctrine that the father should be a
subject lawfully, and without breach of his allegiance beyond sea, no matter what may be
the condition of the mother.’ The law of nations, which becomes, when applicable to an
existing condition of affairs in a country, a part of the common law of that country,
declares the same rule. Vattel, in his Law of Nations (page 101), says: ‘As the society
cannot exist and perpetuate itself otherwise than by the children of the citizens, these
children naturally follow the condition of their fathers and succeed to their rights. * * *
The country of the father is, therefore, that of the children, and these become true citizens
merely by their tacit consent.’ Again, on page 102, Vattel says: ‘By the law of nature
alone, children follow the condition of their fathers and enter into all their rights.’ This
law of nature, as far as it has become a part of the common law, in the absence of any
positive enactment on the subject, must be the rule in this case.”

11. Elk v. Wilkins, 112 U.S. 94 (1884): “The main object of the opening sentence of the
fourteenth amendment was to settle the question, upon which there had been a difference
of opinion throughout the country and in this court, as to the citizenship of free negroes,
(Scott v. Sandford, 19 How. 393;) and to put it beyond doubt that all persons, white or
black, and whether formerly slaves or not, born or naturalized in the United States, and
owing no allegiance to any alien power, should be citizens of the United States and of the
state in which they reside. Slaughter-House Cases, 16 Wall. 36, 73; Strauder v. West
Virginia, 100 U. S. 303, 306… [S]ubject to the jurisdiction thereof… is, not merely
subject in some respect or degree to the jurisdiction of the United States, but completely
subject to their political jurisdiction, and owing them direct and immediate allegiance….
Persons not thus subject to the jurisdiction of the United States at the time of birth cannot
become so afterwards, except by being naturalized… Indians born within the territorial
limits of the United States, members of, and owing immediate allegiance to, one of the
Indian tribes, (an alien though dependent power,) although in a geographical sense born
in the United States, are no more 'born in the United States and subject to the jurisdiction
thereof,' within the meaning of the first section of the fourteenth amendment, than the
children of subjects of any foreign government born within the domain of that
government, or the children born within the United States, of ambassadors or other public
ministers of foreign nations…. To be a citizen of the United States is a political privilege
which no one, not born to, can assume without its consent in some form.”

12. United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890) (same definition and cites
Vattel); “At common law, with the nomenclature of which the framers of the Constitution
were familiar, it was never doubted that all children, born in a country of parents who
were its citizens, became themselves, upon their birth, citizens also. These were natives,
or natural-born citizens, as distinguished from aliens or foreigners.”

13. U.S. v. Wong Kim Ark, 169 U.S. 649 (1898): It quoted the same definition of
“natural born Citizen” as did Minor v. Happersett. Hence, Wong did not change the
definition of an Article II "natural born Citizen." It declared under the Fourteenth
Amendment a child born on United States soil to alien parents who were domiciled and
legally residing in the United States and therefore subject to the jurisdiction of the United
States a “citizen of the United States,” It did not find him an Article II “natural born
Citizen.” The Wong Kim Ark holding which relates to a Fourteenth Amendment born
"citizen of the United States" cannot be relied upon to define an Article II “natural born
Citizen.” Defining what an Article II “natural born Citizen” is depends upon what the
Framers intended that clause to mean in 1787. The Framers defined national citizenship
during the Founding in the historical context of the American Revolution, a context
which did not exist in 1898. In that context, the Founders had to provide for who were the
original citizens and who were their descendents. To define these terms, the Framers
relied upon the same law that justified the Revolution itself. That law was natural law and
the law of nations and not the English common law. From that law, they came to call the
original citizens "citizens of the United States" and their descendents, the "natural born
Citizens." The Framers then gave Congress the power to naturalize all other persons who
may in the future also qualify to be “citizens of the United States.” Under natural law and
the law of nations as commented upon by Vattel, whom the Framers relied upon to
explain that law, this meant that only the children of citizens (either “natural born
Citizens” or naturalized) could ever be “natural born Citizens.” All other citizens would
only be “citizens of the United States.” Wong Kim Ark dealt with defining what a
Fourteenth Amendment “citizen of the United States” was in 1898. Justice Gray's general
statements in Wong Kim Ark as to what a "natural born subject" (which under English
common law also included naturalized subjects) was in the colonies under English
common law before the Revolution made by him for the purpose of defining a “citizen of
the United States” in 1898 do not answer the question of what the Founder's definition of
an Article II "natural born Citizen" was in 1787. In fact, given the Revolution and the
need to constitute a new society, to the Framers the English common law was neither
relevant nor useful in providing that definition. Justice Gray’s decision can at best be
used to define what an original citizen was before the adoption of the Constitution which
definition he used to justify his declaring Wong a Fourteenth Amendment born "citizen
of the United States." But it cannot be used to define what a “natural born Citizen” is
following its adoption. Additionally, the Wong court itself recognized the two distinct
types of citizens, a "natural born Citizen" and a "citizen of the United States." Chief
Justice Fuller in his dissent said that he would not have found Wong to be a “citizen of
the United States” because his parents were not citizens. He also confirmed Vattel’s
definition of a “natural born Citizen.”

The two citizen-parent requirement (not only just one parent) comes from the definition
of a “natural born Citizen” referring to the child’s parents in the plural. It also comes
from the common law that provided that a woman upon marriage took the citizenship of
her husband. Both parents must also be citizens in order for the child not to be born
subject to any foreign power and therefore with any other conflicting allegiance or
loyalty. Hence, given the Framers’ use of the “natural born Citizen” clause, they required
a would-be President to have both (1) birth on United States soil (or its equivalent) and
(2) birth to two United States citizen parents as necessary conditions of being granted that
special status. Given the necessary conditions that must be satisfied to be granted the
status, all "natural born Citizens" are "Citizens of the United States" but not all "Citizens
of the United States" are "natural born Citizens."

It is telling that of all the positions and offices the Framers provided for in the
Constitution, only that of the President and Commander in Chief of the Military (and also
the Vice President under the Twelfth Amendment) may be occupied only by a “natural
born Citizen.” They therefore believed that this singular and all-powerful office was more
vulnerable to foreign influence than any other and they thereby sought to give it the most
protection that they could. Minor said that there were doubts whether the children born in
the United States to alien parents were “citizens.” The Minor decision was decided in
1875 or 87 years after the Constitution was adopted and as Justice Waite explained in that
decision our nation still had doubts on whether children born in the United States to alien
parents were even citizens. If the Court had doubts about whether these children were
“citizens,” it surely had doubts whether they were “natural born Citizens.” We cannot
reasonably imagine that the Framers would have used a standard for a person to meet in
order to be eligible to be President and Commander in Chief of the Military which would
have created doubts as to its meaning and which would therefore have put at risk the
security and integrity of that critically important office. Surely, they would have relied on
a definition that created no doubt which Minor explained was one that included that both
the child be born in the country (or its equivalent) to citizen parents. Indeed, as Minor
explained, such a standard created no doubt. It was through the “natural born Citizen”
clause that the Framers sought to accomplish the goal of protecting the Office of
President and Commander in Chief of the Military from foreign influence and of
providing a definition of national citizenship which the nation would have no difficulty to
understand.
The categories of citizens that the Framers established in the Constitution is "natural born
Citizen" and "citizen of the United States." With respect to citizenship, the Framers gave
Congress only the power to "naturalize" persons to become "citizens of the United
States." Hence, any person that is made a citizen by Congress that is not by the natural
circumstances of his or her birth a "natural born Citizen" is necessarily a naturalized
citizen and consequently a "citizen of the United States" but not a “natural born Citizen.”
Congress has also chosen to exercise its naturalization power over children born in the
United States which constitutionally could have any effect only over a child who is not a
"natural born Citizen." See 8 U.S.C. Sec. 1401(a) ("The following shall be nationals and
citizens of the United States at birth: (a) a person born in the United States, and subject to
the jurisdiction thereof;").

In Dred Scott v. Sandford, 60 U.S. 393 (1856), the United States Supreme Court said that
slaves and their descendents, whether free or not, were not members of American society
even though born on United States soil and unlike the American Indians subject to the
jurisdiction thereof. Hence, the Court said that they were not “citizens of the United
States.’ To correct that ruling, Congress passed the Civil Rights Act of 1866. With this
Act, Congress first declared what a "citizen of the United States" was. The Act declared
citizens of the United States “all persons born in the United States, and not subject to any
foreign power, excluding Indians not taxed.” 14 Stat. 27; Rev. Stat. Sec. 1992. Hence,
this Act removed from citizenship any factor related to color, race, or past condition of
servitude. Because of the controversial nature of the Act, Congress saw fit to introduce
and have passed a constitutional amendment which would protect what the Act sought to
accomplish from the political whims of future Congresses and state governments. We
know that this Act became the precursor to the Fourteenth Amendment which was
passed in 1868.

In Strauder v. West Virginia, 100 U.S. 303, 310, 25 L.Ed. 664 (1879), in commenting
upon what the purpose of the Fourteenth Amendment was, our U.S. Supreme Court said:
"Its aim was against discrimination because of race or color. As we have said more than
once, its design was to protect an emancipated race, and to strike down all possible legal
discriminations against those who belong to it. To quote further from 16 Wall., supra: 'In
giving construction to any of these articles [amendments], it is necessary to keep the main
purpose steadily in view.' 'It is so clearly a provision for that race and that emergency,
that a strong case would be necessary for its application to any other.' "

The amendment was needed to remove any doubts regarding whether blacks could be
United States citizens. But the amendment only allowed these slaves and their
descendents to become a member of the United States community by making them
United States citizens. The intent and purpose of the amendment was to provide equal
citizenship to all Americans either born on United States soil or naturalized therein and
subject to the jurisdiction thereof. It did not grant “natural born Citizen” status. The
Amendment’s framers were familiar with how the Constitution in many places and the
Naturalization Act of 1790 (used “natural born citizens”) and 1795 (changed the statute
to read just “citizens of the United States”) distinguished between a “natural born citizen”
and a “citizen of the United States.” If the Amendment were to grant “natural born
Citizen” status, it would have told us that a born citizen thereunder was a “natural born
Citizen” and not only a “citizen of the United States.” It also would not have equated a
born citizen thereunder to a naturalized citizen, for a naturalized citizen is not eligible to
be President. Hence, the Amendment only confers “citizen of the United States” status, as
that is the exact clause used by the Amendment itself and that is the same clause that
appears in Articles I, II, III, IV and Amendments Eleven, Fourteen, Fifteen, Nineteen,
Twenty-Four, and Twenty-Six of the Constitution and in various Congressional Acts. It
just conveys the status of “citizen of the United States,” and as we have also seen from
how the First and Third Congresses handled the Naturalization Acts of 1790 and 1795,
being a “citizen of the United States” does not necessarily mean that one is a “natural
born Citizen.” Indeed, both Minor v. Happersett (1875) and U.S. v. Wong Kim Ark
(1898) expressly told us that the meaning of a “natural born Citizen” is not found in the
Fourteenth Amendment or any other part of the Constitution but rather in the common
law. The Supreme Court decided these cases after we adopted the Fourteenth
Amendment in 1868 and the Court in both cases was asked to decide if the subject person
was a “citizen of the United States” under the Fourteenth Amendment.

The Fourteenth Amendment only tells us who may become members of the community
called the United States, i.e., those born on U.S. soil or naturalized and subject to the
jurisdiction thereof are U.S. citizens, “and nothing more.” Minor v. Happersett, 88 U.S.
162, 166, 22 L.Ed. 627, 21 Wall. 162 (1874). The Fourteenth Amendment gave the status
of "citizen of the United States" to all those persons born in the United States or
naturalized therein and "subject to the jurisdiction thereof." As to born citizens, the
Amendment was not needed to make anyone a "natural born Citizen," for that status was
conferred upon a child by natural law and the law of nations. On the other hand, the
Amendment was needed to clarify who may be a "citizen of the United States." Under the
probable meaning of the Amendment, it simply removed race, color, and condition of
servitude from the application of the natural law and law of nations definition of a
“citizen” and a “natural born citizen.” As the “subject to the jurisdiction thereof” clause is
currently interpreted, which interpretation is questionable and highly debated, the
Amendment went as far as to take Congress's power to "naturalize" a child born in the
United States of parents who were not citizens (one parent or both not citizens or even
legal residents) as expressed by it in the 1866 Act and constitutionalized the status of that
child to a "citizen of the United States." Additionally, a Fourteenth Amendment born
"citizen of the United States" does not need to go through any formal naturalization
process as does a person wanting to be a “citizen of the United States” but who was not
born a "citizen of the United States" under any Congressional Act. This more liberal rule
can be better understood when we consider that Vattel informed that England was an
exception to the general rule for being born a native or indigenes, in that in England the
“single circumstance of being born in the country naturalises the children of a foreigner,”
Vattel, at Sec. 214.
What is important to understand when questioning Obama’s eligibility to be President is
that neither the Fourteenth Amendment nor any Congressional Act makes one a "natural
born Citizen." Rather, what their provisions create is at a maximum a born or naturalized
"citizen of the United States" who are equal under the law. They do not create a "natural
born Citizen." Since the citizenship clause of the Fourteenth Amendment is supposed to
mirror Congress’s 1866 Act, the Amendment makes one a born citizen through the
Constitution who under the 1866 Act would have been a born citizen by naturalization by
Congress and by so doing it produced only a "citizen of the United States" and not a
“natural born Citizen.” Since Congress had neither the power nor intent to make anyone a
“natural born Citizen” under the 1866 Act and the Amendment merely followed the path
of that Act, the Fourteenth Amendment also would not have made anyone a “natural born
Citizen.” This interpretation is confirmed by Congressman John Bingham who implicitly
distinguished between a “natural born Citizen” and a “citizen of the United States.”
Bingham confirmed the understanding and the construction the Fourteenth Amendment
Framers used in regards to birthright and jurisdiction while speaking on the proposed
civil rights act of 1866 that was being discussed in the House on March 9, 1866: “I find
no fault with the introductory clause, which is simply declaratory of what is written in the
Constitution, that every human being born within the jurisdiction of the United States of
parents not owing allegiance to any foreign sovereignty is, in the language of your
Constitution itself, a natural born citizen….”

To have the special status of "natural born Citizen," a child needs to necessarily satisfy
the birth conditions of that special status, i.e., born in the country to two citizen parents.
These are two factors that occur naturally and need no law to be so recognized. Because
“natural born Citizen” status requires unity of citizenship and allegiance, conditions
which descend naturally to the child at the time of birth from the two events of birth in
the United States and birth to United States citizen parents, this status provides a would-
be President with the greatest degree of loyalty and allegiance to the United States, a
quality that the Framers expected all Presidents and Chief Military Commanders born
after the adoption of the Constitution to have. It is this high degree of loyalty and
allegiance to the United States in a President and Military Commander in Chief of the
Military that provides the nation and each of its citizens and residents with both the
greatest confidence in the person holding that highest civil and military office and the
greatest protection from enemies both foreign and domestic, or what John Jay in his letter
of July 25, 1787, to then General Washington (copy of original) called “a strong check”
on foreign influence invading our government. Wisdom shows that there is no sound
national security or public policy reason why a Constitutional Republic such as the
United States should demand anything less from a person who would aspire to the
singular and all-powerful office of President and Commander in Chief of the Military.
Because Obama was born 173 years after the Constitution was adopted, he cannot take
advantage of Article II’s now obsolete grandfather clause which would have allowed him
to be eligible to be President if he could conclusively prove that he was a “citizen of the
United States” (by conclusively proving he was born in Hawaii). Since he cannot utilize
the grandfather clause, he must conclusively prove he is a “natural born Citizen” to be
eligible to be President. But Obama’s birth circumstances show that, even if he were born
in Hawaii as he claims, he cannot satisfy his constitutional obligation under Article II.
Obama’s father, being born in the then-British colony of Kenya, was under the British
Nationality Act 1948 a British subject/citizen and not a United States Citizen when
Obama was born in 1961. Being here only temporarily on a student visa, he was not
domiciled or permanently residing in the United States. Obama himself in 1961 by
descent from his father was also born a British subject/citizen under that same 1948 Act.
If Obama was born in Hawaii (a fact which he has yet to conclusively prove by
presenting a contemporaneous birth certificate created in 1961 when he was born and not
a Certification of Live Birth created in 2007 and posted on the internet in 2008), which
would make him a dual citizen from birth of the United States and Great Britain, he could
qualify as a “Citizen of the United States” under a liberal and questionable interpretation
of the Fourteenth Amendment. But because his father was not a United States citizen
when Obama was born, he was born subject to a foreign power which he inherited from
his father. Being born subject to a foreign power like a naturalized citizen, he is not an
Article II “natural born Citizen” and therefore is not eligible to be President and
Commander in Chief of the Military of the United States.

Mario Apuzzo, Esq.

March 4, 2010
Updated June 13, 2010
http://puzo1.blogspot.com/
####

Posted by Puzo1 at 8:54 PM

Labels: British Nationality Act of 1948, constitutional eligibility president, dual

nationality, Kerchner, kerchner v obama, Law of Nations, Mario Apuzzo, natural born
citizen, The Laws of Nations, Vattel